



ARGUMENT 



OF 



JOSEPH M. MOEEISO]Sr 



BEFORE TPIE 



Suh- Committee of the Committee on Foreign Affairs of the House of 
Representatives on the Japanese Indemnity Fund^ favoring the 
return of the remainder of the Fund to the Japanese Government, 
delivered March Idth, 1878. 



M7\ Chairmcm, and GentlemeTb of the Coimnittee : 

The question of ownership with reference to the sum exacted by the 
United States Government, in conjunction with other powers, from the 
Japanese, in the year 1864, having been a subject of controversy from 
that time until the present, and the almost uniyersal feeling throughout 
this country being favorable to its return to Japan, it is desirable that the 
matter should be disposed of at an early day. 

Either this money belongs to the United States, or it belongs to Japan. 

I will endeavor, in the course of my remarks, to explain some of the 
reasons which induced the United States Government to accept the cus- 
tody of this fund, and also, to show why it should be returned to the 
rightful owners. 

Prior to the year 1866 our relations with Japan were based upon two 
treaties — one dated in 1854, and the other in 1858. 

These treaties were signed by the Tycoon on the part of Japan. 

The ablest writers upon international law uniformly assert that an 
international treaty, to be valid, must be concurred in by the highest 
authority in each of the countries concerned, and receive the signature 
of the supreme ruler of eacli ination. Was the Tycoon the highest au- 
thority, or supreme ruler', of Jamn? All authorities contradict this 
assumption, and define the duties-dr the Tycoon to be those of executive 
to the Mikado. Xlie latter'was, and is, the recognized head of the Em- 
pire thrpughout its whole extent, while the former was always regarded 
as his subordinate. Indeed, we j&nd the American minister, on several 
occasions, suggesting to the Tycoon the necessity of the sanction of the 
Mikado to the treaties, and at last insisting that this be secured. In a 
letter of April 30th, 1863, Minister Pruyn wrote to Secretary Seward : 
(I) "The Tycoon is outranked by at least four personages in this em- 
pire ;" and again, June 27th, 1863 : (2) " I am satisfied the public mind 
in this country will not be quieted until the treaties are ratified by the 
Mikado. Until this is done, the position of foreigners must continue 
precarious, and their presence occasion intrigues, and perhaps civil war, 
because not sanctioned by the rightful sovereign, which the Mikado 
doubtless is, theoretically and practically." In a letter from the Daimios 
to the Tycoon, which will be found on page 1111, part 2, of the Diplo- 
matic Correspondence for 1863, they wrote as follows : " You are better 

(1) Diplomatic Oorrespuuueiice, 1863, part 2, page 10V5, par. 7. 

(2) '' " " " '' " 1125, No. 45. 



fi^ 



aware than we that power proceeds from the Tenshi, (Mikado,) who has 
distributed it among the great families of Japan. This is a divine order 
established by the Kamis, and he who wishes to change it pretends to be 
wiser than the heavens. If you, however, absolutely wish to imitate for- 
eigners you must consult with our sovereign, who is above everybody, and 
the supreme chief, as is also the case with foreign nations." 

Secretary Seward, in writing to Minister Pruyn under date of Decem- 
ber 17, 1863, (nine months before the Shimonoseki aifair) uses the fol- 
lowing language : (1) " The more you enable us to understand the con- 
stitution of the government and of society in Japan the more weight 
the President inclines to give to your suggestion, that as soon as practica- 
ble the Western powers ought to take measures to have the treaties they 
have already made with the Tycoon ratified and confirmed by the Mika- 
do." And in 1866 Mr. Portman (then U. S. minister in Japan) in an- 
nouncing the accomplishment of this result, writes : (2) " The treaties, 
as well as the acts of the Tycoon's government in pursuance thereof, have 
now become legalized." And again: "I believe I am not too sanguine 
when venturing to submit it as my opinion, that the formal sanction of 
the treaties by the Mikado, recognized by all Japanese as the real sover- 
eign of their country, will prove an important result of the recent nego- 
tiations." The British minister in Japan, in a letter to Earl Russell, 
dated August 25th, 1864, speaks of the Mikado as the " titular and only 
acknowledged sovereign." 

If by the signature of the Mikado, the " real sovereign" the treaties 
became " legalized," it follows as a natural consequence that, prior to that 
time, they were not legal, and could not be held as binding upon the 
Mikado, or upon the people of Japan. 

The fact that foreign nations wished to consider the Tycoon the treaty- 
making power is no argument to sustain the validity of any treaty signed 
by him. 

The unauthorized innovation of the time-honored customs of the nation 
perpetrated by the Tycoon, in opening the country to foreign intercourse, 
was felt to be an assumption of authority which could not be overlooked, 
and aroused the enmity of many of the most powerful Daimios and of the 
Mikado, who adopted measures to embarrass the fulfillment of the obli- 
gations under which the Tycoon had placed himself. 

That the infringement of the provisions of these treaties by the Mikado, 
prior to his signing them in 1866, was a violation of international law 
cannot be claimed, for the reason stated before, that he, the supreme 
ruler of the Empire, had not given his sanction thereto, and could not be 
bound by the independent action of a subordinate in such a matter. 

The sum in controversy is our pro rata of $3,000,000 received from the 
government of Japan under the provisions of a convention signed by the 
representatives of Great Britain, France, the United States, the Nether- 
lands, and of the government of the Tycoon. For our share we received 
$786,125.87. 

The first serious demonstration against the opening of Japan to foreign 
intercourse occurred in the mouth of June, 1863, when two vessels be- 
longing to the Prince of Chosin, a very w^ealthy and powerful Daimio, 

(1) Dip. Cor. 1864-'65, pt. 3, page 589, par. 4. 

(2) " " 1866, " 2, " 191 " 4. 



whose territory bordered upon the north side of the Straits of Shimonoseki, 
fired upon the American merchant steamer Pembroke, while she lay at 
anchor in these straits. 

Shortly afterwards a French, and a Dutch, vessel were fired upon at the 
same passage, but premonitory signal shots were fired in every case, which 
were not heeded. These acts, the Prince subsequently claimed, were in 
obedience to an order from the Mikado. The order referred to required 
that all intercourse with foreigners should cease. As there was no inter- 
course between the inhabitants of the Prince's dominions and foreigners, 
the order w^as practically inoperative as regarded him, and his construc- 
tion of it was a most remarkable one. The fact that none of the other 
Daimios found in it a sanction for such demonstrations, and that he alone 
interpreted it to demand hostile action, is sufficient evidence of his erro- 
neous or wilful misconstruction. 

In the attack on the Pembroke no loss or injury was sustained, and 
she proceeded on her voyage through the Bungo channel. 

(1) On learning of this outrage the American minister notified the 
government of the Tycoon of the fact, and also that he would demand 
full indemnity therefor. 

He at once consulted with Commander McDougal, of the United States 
steamer Wyoming, theft at that station, and it was decided to proceed 
immediately to the Straits of Shimonoseki and retaliate upon the hostile 
prince. 

The work of retaliation was most complete, as the official reports show 
that one vessel was blown up, another sunk, and a third badly damaged, 
w^hile the loss of life must have been very great, forty being reported 
killed by the explosion alone. The loss of the Wyoming was four killed,, 
and seven wounded. 

The value of the two vessels destroyed was stated at $135,000. The 
damage to the bark was probably as great as that sustained by the 
Wyoming. 

Thus our national honor was restored to its purity, and a very severe 
loss inflicted upon the Prince. 

This action was taken before an opportunity had been given the 
Japanese Government to redress the wrong, and by thus ignoring the 
authorities the United States Government deprived itself of the right to 
demand indemnity for any damages received as the result of that pre- 
cipitate action. It should have given the Japanese Government an op- 
portunity to administer chastisement, and if they failed in making repara- 
tion it would then have been time to proceed to extreme measures. By 
the action of Commander McDougal, sanctioned by the American Minis- 
ter, the Prince of Nagato was recognized as a sovereign, responsible for 
his own acts, thereby relieving the Japanese Government from all liability, 
in law or equity, for damages sustained by the United States. The Ameri- 
can Minister recognized this fact in writing to Secretary Seward on the 
28th of November, 1863, as follows: 

(2) " The President will see in this offer of the Government additional 
and conclusive proof that in sending the Wyoming to Shimonoseki hostili- 
ties were not commenced against the Tycoon, but only against a rebel to 
his authority, as well as one I rightfully regarded as an outlaw." 

^^. (1) Dip. Cor., 1863, part 2, page 1129^ No. 48. 

(2) Dip. Cor., ISBl-'eS, part 3, bottom of page 459. 



Mr. Pruyn appears to have desired it to be particularly understood that 
the action of the Wyoming was in nowise directed against the Japanese 
Government, but only against an outlaw for whose acts no government 
could be held responsible; for in a letter of March 17, 1864, to Secretary 
Seward, he reiterates this view in the following words: (1) "Nagato's 
position of outlawry is sufficient, if any doubt could have existed, to 
demonstrate the wisdom of sending the Wyoming against him." His 
view was sustained by our Government, and in the list of claims forwarded 
to Mr. Pruyn by Secretary Seward, by direction of the President, (and 
which will be found on page 592 of part 3, Dip. Cor., 1864-65,) no claim 
for damages incurred by the Wyoming is mentioned. 

That the act of Commander McDougal was one of extraordinary 
bravery cannot be denied, but the recognition of the gallantry of our 
naval corps has never been deemed a part of the duty of any other nation. 

The bill of the owners of the Pembroke for damages was as follows: 

(2) "Statement of loss sustained in consequence of a murderous assault 
made upon the steamer Pembroke, in the Inland Sea, on the 19th of June, 
by armed vessels flying the flag of the Government of Japan: 

Loss of time by being obliged to go through an unknown and 

circuitous passage to reach the open sea, five days, at $300 $1,500 

Loss of freight and passengers through not being able to visit 

Nagasaki, whither the vessel was bound; estimated at 6,500 

Consideration to be distributed among the officers and crew as 

recompense for the deadly peril to which they were subjected.. 2,000 

Total..... $10,000 

"Shanghai, July 4, 1863." 

When urging the claim of the Pembroke the Minister also presented 
the case of the Wyoming, but the Government of the Tycoon, while ad- 
mitting the justice of the indemnity for the Pembroke, and promising its 
payment, suggested that the loss inflicted by the Wyoming might very 
properly offset that she had received, the justice of which being apparent 
the subject was not again referred to. 

It is reasonable to suppose that while reclamation was exacted for every 
injury done to Americans in Japan, if the claim for injuries sustained by 
the Wyoming, or for prize money for the officers and crew, had been 
deemed just and equitable, it would have been insisted upon until paid. 
But we find the American Minister writing to Secretary Seward under 
date of August 10, 1864, as follows: 

(3) "I returned to this place on the 5th instant, after a visit of three 
weeks to the city of Yedo, having succeeded in securing the settlement 
of the claims which I had been instructed to demand of this Govern- 
ment. The Government placed in my hands a letter drawn by myself, 
in which they said that they directed the Governor of Kanagowa, on the 
5th of September, to pay me the sum of $12,000, principal and interest 
of the Pembroke claim. — Some months before I had notified them I 
should expect interest, thinking it would hasten the payment of the 

(1) Dip. Cor., 1864-'65, part 3, page 486, No. 23. 

(2) Dip. Cor., 1863, part 2, page 1138. 

(3). Dip. Cor., 1864-'65 part 3, page 535, No. 52. 



principal sum. — The owners of the Pembroke will have received a very 
large indemnity in view of the small loss they sustained, and they neither 
applied for, nor expected, interest; nor did I ask for it on their behalf, 
but only to accelerate the payment of the jDrincipal." 

In a letter dated August 8th, 1864, addressed to Captain Price, of the 
United States ship Jamestown, thanking him for the guard furnished dur- 
ing his stay at Yedo, he says : 

(1) *' The Japanese government have arranged, to my satisfaction, the 
claims which I had been instructed by the President of the United States 
to make upon it." 

Here we find that all claims of the United States against Japan prior 
to the date of these letters were satisfactorily settled. 

Not only all claims as defined by the minister, but all claims which 
the President of the United States had demanded. He also received the 
$2,000 excess on the Pembroke claim, and it was applied to the expenses 
of the legation. What more could we ask? 

The Japanese had shown a desire to fulfil every obligation, and had 
satisfied every demand made upon them by our Government. Hence, if 
we fail to make restitution of what came to us wrongfully we will be ex- 
posed to the imputation that subsequent claims were predicated upon the 
alacrity with which former ones were complied with, and upon curability 
to enforce our demands. It appears from a letter written by the American 
minister to the Secretary of State, under date of February 29, 1864, that 
there were really two sides to the question of reclamations, although the 
side in favor of the Japanese was entirely ignored by the treaty powers. 
In that letter he wrote : 

(2) " The claims for injuries on citizens of the United States at this 
place are attended with embarrassments it will be exceedingly difficult to 
overcome. There have been, unfortunately, very many instances where 
Japanese have been grossly maltreated by foreigners and no indemnity asked 
or paid. Indeed, it admits of some question whether it would be safe, in 
view of the character of the floating population of the treaty powers at 
the open ports, to establish the principle of the liability of a government 
for the act of its individual citizens or subjects." 

All through the early intercourse between the United States and Japan 
there is an apparent partiality in favor of this country above all others, 
which aggravates the subsequent action in exacting the Shimonoseki in- 
demnity. In the very letter in which the attack on the Pembroke is 
recited. Minister Pruyn says : 

(3) *' I still believe that the feelings of this government and people 
towards the Government and people of the United States are decidedly 
friendly ; but recent occurrences have proved what I predicted, that any 
discrimination is practically impossible ; we are foreigners, and must 
share the common fate." 

In another letter, dated August 10th, 1864, speaking of his visit to 



(1) Dip. Cor., 1864 and 1865, part 3, page 541. 

(2) Dip. Cor., 1864 and 1865, part 3, page 485. 

(3) Dip. Cor., 1863, part 2, page 1135. 



6 

Yedo, he mentions, with very apparent satisfaction, that (1) " the most 
peaceful revohition has taken place which has marked the history of this 
government." Many officials hostile to foreigners had been removed, and 
their places filled with supporters of the Tycoon's liberal foreign policy. 
The populace also were very friendly, and Mr. Pruyn moved about in the 
worst quarters of the city without molestation. 

A few days after this Mr. Pruyn joined the ministers of Great Britain, 
France, and the Netherlands in arranging a crusade against the Prince 
of Chosin, for the purpose of opening the Straits of Simonoeski to the 
passage of foreign vessels. 

Having about a year previously received instructions to act in concert 
with the ministers of the other treaty powers, in what was deemed neces- 
sary to the interests of all, or any of them, which orders had not been 
recalled, Mr. Pruyn was placed in a peculiar position, pledging him to 
hostile action when no cause existed for such action. Hence, when the 
British minister urged him to join in the expedition, and represented that 
his failure to do so might lead to the inference that the treaty powers 
were not in accord, and that the moral effect of the presence of the 
American flag was absolutely necessary, Mr. Pruyn was constrained to 
charter a small merchant vessel, and mount a gun upon her, to represent 
the Government of the United States. He was the more readily per- 
suaded to adopt this course, as our complications at home would not ad- 
mit of a sufficient naval force being kept in Japanese v/afcers to insure 
safety to American residents, and it was therefore essential that the treaty 
powers should remain in harmony, and more especially that America 
should not repudiate the action of the other powers, as will be seen by a 
reference to the Diplomatic Correspondence of 1864 and '65, part 3, page 
545, par. 7. 

Contrary to the expressed wish of the Tycoon's government, this hos- 
tile fleet sailed for Simonoseki with the object before stated. The fleet 
consisted of seventeen vessels, of which number but one carried the Amer- 
ican flag, and that one was merely sent that the United States might be 
represented, and the officer in command of her was so instructed. 

Arriving at the straits, the squadron made thorough work of the de- 
struction of the batteries, carried away all the guns, and compelled the 
Prince to sue for peace- During the engagement, the American repre- 
sentative in the fleet was not injured in the least; not a man was hurt; 
and not a shot struck the ship, but she received on board twenty-three of 
the wounded of the British squadron. 

From this it would appear that, although the American commander 
expended some powder, he was enabled to keep out of range of the bat- 
teries while doing so. After completing the work of destruction, the fleet 
returned to Yokohama. 

The purpose of this expedition was stated to be the opening of the 
straits to the passage of foreign vessels. The right of foreign vessels to 
navigate this passage, against the wish of the Japanese government, can- 
not be sustained in law or equity. 

The inland sea of Japan (of which the Strait of Simonoeski is the western 
outlet) is a narrow body of water having several openings into the adjacent 
sea, none of which are six miles in width, and is entirely enclosed by Ja- 

(1) Dip. Cor., 1864 and 1865, part 3, page 534. 



panese territory. It is an axiom of iDternational law, that the maritime 
territory of a State extends (1) "to the distance of a maritime league 
along all the coasts," and also " to the straits and sounds bounded on both 
sides by the territory of the same State, so narrow as to be commanded 
by cannon-shot from both shores, and communicating from one sea to 
another." 

Puffendorf says : (2) "Gulfs and channels, or arms of the sea, are, ac- 
cording to the regular course, supposed to belong to the people with 
whose land they are enclosed." 

From "Twiss on Peace" I extract the following : (3) "If a sea is entirely 
enclosed by the territory of a nation, and has no other communication 
with the ocean than by a channel of which that nation may take posses- 
sion, it appears that such a sea is no less capable of being occupied and 
becoming property than the land, and it ought to follow the fate of the 
country that surrounds it." — " So, likewise straits, which serve as a com- 
munication between two seas, and of which the shores on both sides are 
the territory of one and the same nation, are capable of being reduced 
into the possession of that nation." — " Whenever a nation has the exclu- 
sive right over an entire sea, or over a bay, or over straits, no other na- 
tion can claim a right of navigation therein against its will." — " The ex- 
clusive right which the Ottoman Porte exercises over the straits, and the 
intermediate sea, which connect the Mediterranean with the Black Sea, 
rests upon a prescription which has obtained the formal sanction of 
the great powers of Europe." — " The right of the Porte had a lawful 
origin at the time when the shores of the Black Sea were in the exclusive 
possession of the Ottomans, but after Kussia had made large territorial 
acquisitions on its shores, the latter power, under the common law of Eu- 
ropean nations, had a right to navigate the waters of the Black Sea, and 
to pass outwards with trading vessels into the Mediterranean. But the 
Ottoman Porte did not at that time acknowledge any public law in com- 
mon with the Christian powers of Europe, and the latter powers had not 
the right, if they had possessed the might, to impose their system of law 
upon the Ottoman nation." 

Here we have sufficient authority to substantiate our claim, even if the 
position of the sea of Marmora (the connecting link between the Black 
Sea and the Mediterranean) and that of the Inland Sea of Japan were 
identical, but the advantage is most decidedly in favor of the latter; for 
while the only outlet for commerce from the Black Sea is through the sea 
of Marmora, the Inland Sea was not the thoroughfare for the passage of 
vessels between the ocean and the sea connected by its waters. There 
were two passages — one to the north, and the other to the south of this 
sea — both of which were as free to the navigation of vessels of all nations 
as the ocean itself The claim that the passage through the Inland Sea 
was free by right of usage, will not bear the test of a comparison with in- 
ternational precedents. No provision was made in any of the treaties for 
the opening of this sea to navigation by foreign vessels, nor against their 
beiug excluded from its -waters. 

The statement that any international law at that time existing, which 
subverted their right to the exclusive jurisdiction over the Island Sea, 

(1) Dana's "Wheaton/' page 270. 

(2j Puffendorf s " Law of Nature aud Nations,'' L. 4, c. 5, ^ 8. 

(3) Travers' Twiss "Peace," 250, 251, 260, & 261. 



8. 

was binding upon the Japanese, is an assumption unwarranted by the 
rules of equity, and in contravention of authorities. They having, for two 
hundred years, been entirely isolated from the rest of the world, were 
ignorant of the laws which governed international intercourse, and ac- 
knowledged obedience to none but their own. We then " had not the 
right if we had possessed the might" to force them to accept our con- 
struction of law. The only ground left upon which to base a claim for 
compensation is the service rendered to the Government ; and as it was 
claimed to be inimical to its interests, and was in direct opposition to the 
expressed wish of the Tycoon, it is difficult to sustain this position. 

Upon the return of the fleet the representatives of the four treaty pow- 
ers met in convention and drew up the following document, which was 
submitted for the action of the Japanese Government: 

CONVENTION. 

(1) " The representatives of the United States of America, Great Britain, 
France, and the Netherlands, in view of the hostile acts of Mori Daizen, 
Prince of Nagato and Suwo, which were assuming such formidable pro- 
portions as to make it difficult for the Tycoon faithfully to perform the 
treaties, having been obliged to send their combined forces to the Straits 
of Shiraonoseki in order to destroy the batteries erected by that Daimio 
for the destruction of foreign vessels and the obstruction of trade ; and 
the Government of the Tycoon, on whom devolved the duty of chastising 
this rebellious prince, being held responsible for any damage resulting 
to the interests of the treaty powers, as well as the expenses occasioned 
by the expedition, the undersigned representatives of the treaty powers, 
and Sakai Hida-No-Kami, a member of the Second Council, invested 
with plenipotentiary powers by the Tycoon of Japan, animated with a 
desire to put an end to all reclamations concerning the acts of aggression 
and hostility committed by the said Mori Daizen since the first of these 
acts in June, 1863, against the flags of divers treaty powers, and at the 
same time to regulate definitely the question of indemnities of war, of 
whatever kind, in respect to the allied expedition to Shimonoseki, have 
agreed and determined upon the four arrticles following: 

Article I. 

The amount payable to the four powers is fixed at $3,000,000. This 
sum is to include all claims, of whatever nature, for past aggressions on 
the part of the Prince of Nagato, whether indemnities, ransom for Shi- 
monoseki, or expenses entailed by the operations of the allied squadrons. 

Article II. 

The whole sum to be payable quarterly in installments of one-sixth, or 
$500,000, to begin from the date when the representatives of the said 
powers shall make known to the Tycoon's Government the ratification of 
this convention and the instructions of their respective Governments. 

Article III. 

Inasmuch as the receipt of money has never been the object of said 
powers, but the establishment of better relations with Japan, and the de- 
sire to place these on a more satisfactory, and mutually advantageous 

(1) Dip. Cor., 1864-'65, part 3, page 583. 



footing, is still the leading object in view ; therefore, if His Majesty, the 
Tycoon, wishes to offer, in lieu of the payment of the sum claimed, and 
as a material compensation for loss and injury sustained, the opening of 
Shimonoseki, or some other eligible port in the Inland Sea, it shall be at 
the option of the said foreign governments to accept the same, or insist 
on the payment of the indemnity in money under the conditions above 
stipulated. 

Article IV. 

This convention to be formally ratified by the Tycoon's Government 
within fifteen days from the date hereof. 

In token of which the respective plenipotentiaries have signed and 
sealed this convention in quintuplicate, with English and Japanese ver- 
sions, whereof the English shall be considered the original. 

Done at Yokohama this 22nd day of October, 1864, corresponding to 
the twenty-second day of the ninth mouth of the first year of Genji. 

(Signed) Sakai Hida-No-Kami, [Jap. seal.] 

Rutherford Alcock, 
Her Britannic Majesty^s Envoy Extraordinary and Minister 

Plenipotentiary in Japan. 

Leon Roches, 
Minister Plenipotentiarie de La Majestie VEmpereur des 

Francais en Japan. 

Robert H. Pruyn, 
Minister Resident of the United States in Japan. 
D. DeGraeff Von Polsbroek, 
Sis Netherland Majesfy^s Consul GenH and Political Agent in Japan." 

We must not for a moment lose sight of the fact that the provisions of 
this convention were framed to cover the cases presented by the four treaty 
powers, and not with a view singly to American interests. 

Observe the remarkable verbiage of the preamble to this document. It 
is first stated that the hostile acts of the Prince of Nagato were becoming so 
formidable as to make it difficult for the Tycoon faithfully to observe the 
treaties, and, further, that it was the duty of the Tycoon to chastise the 
Prince for his rebellious acts. That he was responsible for damages to the 
interests of the treaty powers, and for the expenses of the hostile expedition 
of those powers. 

Here they wished to lead to the inference that the obstruction of the 
Strait was a violation of the treaties. Even were we to admit that the 
treaties were legally binding upon thesupreme government of Japan (which 
I do not) there was no clause in any of those treaties providing for the 
opening of the Inland Sea, or any of its outlets, to foreign commerce. They 
announce it to be the duty of the Tycoon to administer chastisement, at the 
same time admitting his inability to do so, and hold him responsible for 
damages to the interests of foreign powers, resulting from the closing of the 
straits, and the " stoppage of trade." As there was no open port in the 
Inland Sea, and as the highways of commerce were not in the least ob- 
structed, it is difficult to perceive w^herein the interests of the treaty powers 
could have been damaged, or the reported "stoppage of trade" had any 
foundation, even in the vivid imaginations of the draughtsmen of this inge- 



10 . 

nioiis convention. But the audacity of the assertion that the Tycoon is re- 
sponsible for the expenses of the expedition againstthe Prince is beyond com- 
parison. Just prior to the sailing of the fleet the Tycoon sent embassadors 
to the ministers of the foreign powers to implore them not to resort to hostile 
measures, as he feared such action would render it impossible for him to 
carry out the obligations into which he had entered in his treaties, and 
would precipitate a general uprising against foreigners ; but if they would 
wait until the present crisis was passed he hoped quiet would be restored, 
and he would be enabled to reduce the Prince to submission. 

In the face of this protest the squadron sailed, thus forcing the alterna-. 
tive of regarding the Prince as a pirate and an outlaw, or of their having 
committed an overt act against the government of Japan, which latter 
would have abrogated even the slender treaties then existing. 

Again, they say : 

" Animated with a desire to put an end to all reclamations concerning 
the acts of aggression and hostility committed by said Mori Daizen, since 
the first of these acts in June, 1863, against the flags of divers treaty 
powers J' 

It should be borne in mind that the assault on the Pembroke was the first 
of the series, and the only one made upon an American vessel, excepting 
the attack upon the Wyoming whenshe went on her voyage of retaliation, 
and as those had been arranged satisfactorily, and all claims which were 
made against the Japanese government by the President of the United 
States, up to the time of the departure of the expedition against Chosin, 
were settled prior to that time, therefore no reference could have been in- 
tended, as far as the United States was concerned, to any reclamation, ex- 
cept for damages incurred as the result of that expedition. 

That no indemnities were contemplated except for expenses occasioned 
by the dispatch of the Allied expedition is amply proven by reference to 
the memorandum of the ministers of foreign powers, dated August 25th, 
1864, article second, which will be found on page 550 of part 3, Diplo- 
matic Correspondence of that year, where it is expressly mentioned that 
the commandant of the expedition be requested to obtain, " in connection 
with the government of the Tycoon, an indemnity from the Prince of 
Nagato to cover the expenses occasioned to their respective governments 
by the expedition now to be dispcd,eJied against his batteries." 

This view is substantiated in the letter of the American minister an- 
nouncing the return of a portion of the fleet where, in speaking of what 
he expected to accomplish upon the return of the remainder of the fleet, 
he mentions as the third item (1) " the payment by the Tycoon of the 
expenses of the expedition in behalf of Chosin, or the opening of a port 
at Simonoseki." 

The next clause of the preamble to the convention reads, "and at the 
same time to regulate definitely the question of indemnities of war, of 
whatever kind, in respect to the Allied expedition to Shimonoseki," &c. This 
expressly specifies that the only indemnities to be paid from this sum are 
for damages incurred by the allied squadron on that occasion. And here, 
again, we are too liable to lose sight of the part taken by the other 
powers, and viewing only the result as referring to the United States, to 
aigue that, as we sufiTered no loss at that time, it must refer to the case of 
the Wyoming. 

(1) Dip. Cor., 1864, pt. 3, page 553. 



11 

We should remember that, although our chartered vessel was not dam- 
aged at all, and not a single man on board of her received even a 
scratch, she took on board upwards of twenty of the wounded of the Brit- 
ish squadron, showing that the Government of Great Britain had ^ome 
reason to provide for indemnities "in respect to the Allied expedition." 
The French, and the Netherlanders, also suffered severely, and might 
be pardoned for putting in this plea. The American minister, in writing 
to Secretary Seward, in a letter of October 29th, 1864, of the increase 
from $2,000,000 to $3,000,000, says he assented to it the more readily 
because he (1) "thought it more likely to lead to the substitution of a port 
as 2imateriol compensation for the expenses of the expedition ;^^ thus showing 
beyond peradventure that, as far as the United States was concerned 
that was the only indemnity intended to be provided for. 

Now let us scan the articles of the convention: 

Article first begins: "The amount payable to the f)ur powers is fixed 
at $3,000,000." In his letter of transmittal with this document the 
American Minister wrote: (2) "The British Minister and myself, prior to 
meeting the Japanese Commissioners, had agreed on $2,000,000 as the 
sum to be paid, aud would have had no difficulty in its division among 
the powers interested; but some difference was suggested as likely to arise 
from the consideration whether the moral support afforded was not entitled 
to weight in such adjustment, and I did not feel that it was incumbent on 
me to interpose any objection to this view, as the moral support afforded 
by the United States was considerably in excess of the material support 
I was enabled to give." In other words, after estimating the indemnities, 
expenses, &c., of the expedition, the round sum of $2,000,000 was decided 
as ampl}^ sufficient to fully indemnify all parties for losses, for expenses of 
the expedition, and for pensions; but in this case it was found that the 
United States would only receive the expenses of the chartered vessel, 
and the $6-40 fired away by Ensign Pearson, as no damage had been 
sustained by men, or vessel, and it was then suggested, as a salve for the 
wounded sensibilities of America's representatives, that it would be just 
as easy to get $3,000,000 as $2,000,000, and that, really, the moral weight 
of the assistance rendered by the United States in providing a socket for 
its flagstaff was of vast account, and should be handsomely rewarded ; 
so another million was added, which made it possible to divide the amount 
equally between the f )ur powers, and at the same time cover the expenses 
and damages of the heaviest sufferer, thus leaving no ground for com- 
plaint. That it resulted from an entire misconception of the facts, is the 
only explanation I can fiud for the action of our Government in accepting, 
from a friendly power $786',000 as recompense for its "moral support" in 
a hostile demonstration undertaken in violation of the expressed wish of 
that power, and directed against an acknowledged "pirate" and "outlaw." 

This has never been the intention of the Government, nor the desire of 
the people, of the "asylum for the oppressed." 

The next clause of article first reads: "This sum to include all claims, 
of whatever nature, for past aggressions on the part of the Prince of 
Nagato, whether indemnities, ransom f )r Shimonoseki, or expenses entailed 
by the operations of the allied squadrons," Here we must recall that, 
whatever may have been the outstanding claims of other powers, those 



1) Dip. Cor., 1864 & '65, part 3. page 582, I 4. 

2) Dip. Cor., 1864-'65, part 3, page 582, ^ 4. 



12 

of the United States, prior to the departure of the allied expedition, were 
all adjusted, and the indemnities were expressly specified to be "in respect 
to the allied expedition to Shimonoseki." How any claim could equitably 
be made for a "ransom for Shimonoseki" is utterly incomprehensible. 

The object of the expedition was stated to be "the opening of the 
Straits to the passage of foreign vessels," and Shimonoseki was not named 
in the treaties with the Tycoon as one of the ports to be opened to for- 
eigners. If reference is intended to the forbearance of the allies in not 
destroying the town when it was in their power, the demand is unworthy 
of consideration. That the expenses of the expedition should be borne 
by the Japanese Government, is equally repugnant to all sense of justice. 
How many such claims would our government have allowed to foreign 
powers, had they elected to send expeditions against the Southern States 
during the rebellion, and then presented claims for exemplary damages 
and expenses? Yet this Daimio was, at the time, in open rebellion against 
the Government, and the Tycoon had confessed his inability to subdue 
him. 

The second section merely provides for the payment of the indemnity 
in quarterly installments of 1500,000 each. 

The third section of the convention discloses the whole plot, and shows 
the real object of those who drew up the document. "Inasmuch as the 
receipt of money has never been the object of the said powers, but the 
establishment of better relations with Japan, and the desire to place them 
on a more satisfactory, and mutually advantageous footing, is still the lead- 
ing object in view, therefore, if his Majesty, the Tycoon, wishes to offer in 
lieu of the payment of the sum claimed, and as a material compensation 
for loss and injury sustained, the opening of Shimonoseki, or some other 
eligible port in the Inland Sea, it shall be at the option of the said foreign 
Governments to accept the same, or insist on the payment of the indemnity 
in money under the conditions above stipulated." 

Here the declaration is made, that the object of the treaty powers was 
not to obtain money ; then one of the reasons for making such an exor- 
bitant demand must have been, to force the acceptance of the alterna- 
tive ; as the ministerial councillors knew they had so impressed the Jap- 
anese with the power of their combined resources that they would not 
dare to entirely disregard their wishes. That such an impression of the 
ability of the treaty powers to enforce any demand they might choose to 
present, was believed, by the ministers of those powers, months before the 
affair at Siraonoseki, to have been created in the minds of all Japanese, 
is indicated by the expression of the American Minister in a letter to 
Secretary Seward, dated March 17th, 1864, and reciting the action of the 
Wyoming, where he says, (1) "And I may remark that no occurrence 
has made such a deep and favorable impression on this government. If 
one vessel could accomplish so much, how can we possibly resist the Na- 
vies of America and Europe, is the natural question ; and the number of 
those who judge successful resistance possible must be small, if indeed 
any prince can be found so arrogant and ignorant." The alternative of 
opening another port was deemed by the Tycoon impracticable, as he 
stated to the Ministers it would precipitate a civil war, and he was, con- 
sequently, compelled to agree to pay the money. 

(1) Dip. Cor. 1864 and 1865, pt. 3, page 480, No. 23, par. 5. 



Notwithstanding the avowal that money was a secondary consideration, 
tJiese powers, when, two years later, and two years in advance of the time 
agreed upon, the Japanese opened two additional ports, neither ofi'ered to 
refund the money that had been paid them, nor to remit the payment of 
any part of the balance. The mode adopted for " establishing more 
friendly relations with Japan," was certainly a novel one. 

It has been argued that our merchants suffered loss by the closing of 
the Straits of Simonoseki, because it prevented the shipment of cargoes 
to points in the East which would have been sent had not this obstruc- 
tion existed. The fallacy, and absurdity, of this argument is shown at 
once : for the only obstruction being to the passage of that one Strait ; 
the route to and from the United States and the East not being through 
that Strait ; and there being no port in Japan open to foreigners which was 
approached through that channel ; the assumption is without foundation. 
And even if there had been open ports within the Inland Sea, there are 
three other passages between it and the ocean all of which were unob- 
structed. 

A parallel has been drawn between this case and that of the pirate 
"Alabama," and the proposition advanced that, if we refund this money 
to Japan, we would be bound in honor to return to the British Govern- 
ment any residue of the Geneva award. This over&trained comparison is 
amazing. The acts of the Prince of Chosin were confined to preventing 
vessels passing through the Straits of Simonoseki. 

No incursions were made by him upon commerce, and it was well known 
to all interested that no attack need be apprehended from him anywhere 
upon the high seas. Heuce his action could not, by any possibility, have 
deterred the shipment of a single dollar's worth of merchandise. On the 
other hand, the acts of the Alabama rendered the navigation of the ocean 
by our merchant vessels extremely dangerous. As she roamed over tiie 
entire ocean preying upon our commerce, merchants feared to trust to the 
chance of a safe passage, and hence the equity of the claim for conse- 
quential damages. 

The value of the property destroyed by the Alabama is, however, 
largely in excess of the amount awarded for damages. Besides, the set- 
tlement in the one case was effected through the officers of a disinterested 
power untrammeled by the menace of a powerful alliance, while in the 
other a weak Government, divided by internal dissensions, overawed by 
the magnitude of the powers with which it was striving to obtain an 
equitable adjustment of the differences which had arisen between them, 
and recognizing its inability to successfully resist their demands, saw no 
alternative but to accept the least objectionable of the propositions sub- 
mitted by them. 

The sura received from England is an aiuarcl to a single nation, based 
upon sworn statements of losses sustained, after the exclusion of all claims 
for damages from the interruption of trade and commerce, which claims 
were founded upon actual facts. That received from Japan is the result of 
Si united demand made by four of the most powerful nations on tlie globe, 
based upon an imaginary grievance, without regard to damages incurred, 
and enormously in excess of every claim which has ever been, or which 
can be, brought against it with the slightest semblance of justice. 

The whole matter may be summed up as follows : 

The assault on the Pembroke, without previous notice of the closing of 



14 

the Straits, was an outrage for which the owners of the vessel were paid 
every dollar they claimed, receiving $10,000 when no actual injury was 
sustained ; the United States received $2,000 for negotiating the claim, 
and, in retaliation for the insult to the flag, inflicted a very severe loss 
upon the offenders. 

Prior to the departure of the Allied squadron on its errand of destruc- 
tion all claims of the United States against the Government of Japan 
had been settled. 

The action of the ministers in dispatching this squadron with the ob- 
ject specified was without authority, against the wishes of the Tycoon, 
and entirely unwarranted by the circumstances. 

The vessel chartered to represent the United States in the squadron re- 
ceived no injury, and not one of her crew was either killed or wounded. 

The articles of convention expressly specify that the only indemnities' 
provided for are for losses and injuries sustained in the action of the Allied 
squadrons, and expenses of that expedition, and as the United States sus- 
tained no "loss or injury" in that expedition, this Government received 
$786,125.87 for expenses incurred, and "moral support," when the actual 
expenses were, for charter of vessel $9,500, for coal $1,848, and for am- 
munition $640 ; making a total of $11,988, and placing to the credit of 
" moral support" the sum of $774,137.87. 

The sum total of all claims for indemnities, and for prize-money for 
the officers and crews of the Wyoming and the Takiang, computed 
according to the laws of the United States governing such matters, is set 
down at $125,000. Even if these claims should be admitted to be just 
there would still remain in the hands of the United States Government 
nearly $650,000 of the principal, together w^ith the accrued interest. 

The whole sum was invested in United States bonds, which were placed 
in the hands of the Secretary of State, and the money went into circula- 
tion, the same as that of any other purchaser of like securities. 

The verdict of the American people has always been in favor of re- 
turning this ill-gotten treasure, and bills have, at different times, passed 
both houses of Congress providing for its return to the Japanese Govern- 
ment. No country on the globe can retain $774,000 exacted from a weak 
nation in the hour of its distress, for "moral support," in an action like 
the one at Simonoseki, and maintain its right to the title "the enemy of 
oppression, and the asylum of the oppressed." 

The question of returning the interest which has accumulated admits 
of no discussion. This money having come into our possession wrong- 
fully, and having been invested in our securities, we stand in the same 
position toward the Japanese Government as toward any other purchaser 
of our bonds. The money itself was applied in paying our indebtedness; 
the compounding of the interest was merely investing the amount in 
bonds in place of drawing the money from the Treasury, and was the 
duty of the Secretary while he remained the custodian of the fund. The 
Japanese Government having borrowed from England, at the rate often 
per cent, interest per annum, to pay the United States Government this 
money, it would not be equitable, in returning the principal, to retain the 
earnings which had accumulated. It would merely cover the stain with- 
out effacing it. 

That the return of this money would be a reflection upon those who 
ratified the treaty on the part of the United States is a false assumption, 



15 

for the Hod. William H. Seward, then Secretary of State, frankly admits 
the injustice of its retention in a letter dated January, 8, 1868, ad- 
dressed to the Hon. N. P. Banks, Chairman Committee on Foreign Af- 
fairs, House of Representatives, which reads as follows: 

(1) "Department of State, 

" Washington, January 8, 1868. 

" Sir : I have the honor to inform you that, pursuant to the stipula- 
tions of the treaty with Japan of the 22d of October, 1864, to which the 
United States was a party, this Government has received from the Japan- 
ese government, without substantial equivalent, as its share of the indem- 
nity stipulated to be paid by that treaty, the sum of six hundred thou- 
sand dollars in gold. This amount has been invested in United States 
registered bonds, and awaits such disposition as Congress may direct. 
" I have the honor to be, sir, your obedient servant, 

" William H. Seward. 
" Hon. N. P. Banks, 

" Chairman of the Committee on Foreign Affairs^ 

"Mouse of Representatives."" 

It will be seen by the statement of the Secretary that he includes the 
interest, f )r at that time there had been but about $375,000 paid by the 
Japanese government, while he gives the amount received, " without sub- 
stantial equivalent," as 1600,000 in gold, thus including the earnings of 
the principal. What better authority could be asked that the Premier, 
to w^hom all the minor details of the negotiations were communicated ; 
who was familiar with the previous relations of the two countries ; and 
from whom the President and the Senate received the information upon 
which was based the ratification of the treaty. 

Both the President, and Congress were, at the time, overwhelmed with 
matters of great national importance in connection with the war which 
had been raging for three years in our own country, and could only ob- 
serve that American interests were protected by the treaty, without in- 
quiring specifically into the means by which this result was secured. So 
little was known in this country of what was transpiring in Japan, that 
the action of our authorities was mainly a reflection of the views of our 
able Secretary of State, who appreciated the importance of maintaining 
the harmony then existing between the treaty powers, and, as no appor- 
tionment of the indemnity was provided for in the treaty, he could not 
decline to advocate its ratification, and relied upon the proverbial justice 
of the American people to repay what was received " without substantial 
equivalent." 

Aside from the sentiment of justice, which demands the return of this 
money, the effect of such a vindication of the principles of equity upon 
which our Government is conducted, would be to turn the tide of popular 
feeling in Japan so strongly towards the United States, and increase the 
demand for American products and manufactures to such an extent, that 
the benefits which w^ould accrue to this country would make its return 
the most profitable investment ever made by our people. 

A comparison of our annual exports to Japan for the past ten years 
will prove the correctness of this position. The figures given were furn- 

(1) Ex. Doc. No. 93, H. E., 2d session, 40th Congress. 



16 

ished by the Bureau of Statistics of the Treasury Department. During 
the year 1868, the value of our exports to Japan aggregated $780,168 ; 
in 1871 it was $987,675, being an increase of but $207,507, in three years. 

The next year, 1872, the Japanese Embassy which visited this country 
was cordially welcomed, and the House of Representatives passed a bill 
remitting the unpaid half of the indemnity. Relying upon the good faith 
of the American people in fulfilling the representations made by them, 
the Japanese turned toward the United States with hearts full of friend- 
ship, burying the past in oblivion, and rejoicing that they had, at last, 
found a people upon whom they could rely for justice in all their deal- 
ings ; and in that year our exports to that country reached the sum of 
$4,362,289, being an increase of $3,374,614, or jouv hundred and fifty per 
cent, in one year. 

In the following year, 1873, they increased to $7,664,058, almost double 
those of the previous year. 

Mark the effect of the demand for the remainder of the indemnity, 
which was made in the summer of 1874, in consequence of the failure of 
the Senate to act on the bill passed by the House. In that year our ex- 
ports to Japan fell to $1,808,107, a falling off of $5,875,951, or more than 
four hundred per cent The decrease continued during the two succeed- 
ing years ; the exports for 1875 being $1,647,197 and for 1876 $1,098,457. 

In the summer of 1876 the Senate passed a bill providing for the return 
of the indemnity, and as a result our exports to Japan were more than 
doubled in the following year, 1877, reaching $2,539,641. The reaction 
was not so great as the impetus given in 1872, for the reason that the 
former professions and promises had proven a hollow mockery, and the 
Japanese, while they were willing to show their appreciation of a return- 
ing sensibility of our injustice toward them, accepted with caution 
promises of restitution without a guarantee of their fulfillment. 

It is devoutly to be hoped that the rendition of full and complete 
justice to this deeply wronged people may be no longer delayed, and that 
America may remove the stain now marring the purity of her escutcheon 
by returning to its rightful owners the principal and interest of the 
"Japanese Indemnity Fund." 

One argument advanced during the debate in the Senate in 1876 
against the payment of interest in returning this fund was that this 
Government never pays interest on claims. Passing by the discussion of 
the correctness of this assertion as entirely irrelevant I challenge the 
comparison between this indemnity and a claim. Webster defines a claim 
as a " demand as of right." The return of this " indemnity fund" is not 
demanded by the Japanese Government, nor by any representative, or 
agent, of that Government. It is a free-will offering of the American 
people in reparation of a wrong, inadvertently, and unintentionally com- 
mitted, and which violates the high principles of justice, and equity, upon 
which the very foundation of our Government rests. While I am en- 
abled authoritatively to state that the exaction of this tribute money is 
regarded by the Japanese nation as a gross injustice, and that its return 
would be accepted by them as a vindication of our oft-repeated expressions 
of friendship, and of the just and amitive policy which has always char- 
acterized our intercourse with foreign nations, and which is the proud 
boast of every true American, I can also say, that^the Japanese Govern- 
ment has never applied for the return of this money, nor authorized any 



17 

application looking to that end, relying solely upon the honor of Ameri- 
cans to repair the wrong by which they came into possession of this large 
sum of money. 

I appear before you, not as the agent, or attorney, of the Japanese Gov- 
ernment, nor by the advice, or at the request of that Government, or its 
representative, for I have never addressed to, or received from, the Gov- 
ernment of Japan, or any representative of that Government, any com- 
munication, written or verbal, in regard to this matter, but I present my- 
self, as an American citizen, to urge upon your honorable body, as the 
representatives of the people, the adoption of such measures as may be 
necessary to give expression to the desire of the citizens of this great and 
benignant nation, that this fund should be returned to the Japanese 
Government, and believing that House bill No. 2,847, introduced by 
Mr. Schleicher on the 28th of January last, will meet the views of all 
friends of justice and right, and recognizing the necessity for prompt ac- 
tion in order that the ends of justice may not be delayed, as they have 
been in the past, by the failure, from lack of time prior to the end of 
the session, to secure concurrent action in both houses of Congress, I re- 
spectfully pray that immediate steps may be taken with a view to the 
prompt passage of that bill, with such modifications as your honorable 
committee may deem most expedient. 

JOS. M. MORRISON. 
Washington, March 19, 1878. 






\ 



^^». 



UIBRftRV OF CONGRESS 



"^rr 356 732 8 



